The panel affirmed the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition brought by California state prisoner Sophia Daire, who is serving a 40-year " three strikes" sentence for first-degree burglary.

Daire argued that she was deprived of effective assistance because her attorney failed to present evidence of mental illness in her Romero motion asking the sentencing court to disregard two of her strikes. The panel held that even assuming, arguendo, that the applicability of Strickland v. Washington to noncapital sentencing is clearly established such that federal courts can afford relief from a state court's flawed application of Strickland in that context, Daire cannot prevail under the review standard imposed by AEDPA. The panel held that the state court's findings -- that trial counsel's performance did not fall below an objective standard of reasonableness and that submission of Daire's medical evidence would not have changed the outcome of her Romero hearing -- were not unreasonable applications of federal law.

A California state prisoner petitions this court for writ of habeas corpus pursuant to the Anti-terrorism and Effective Death Penalty Act (" AEDPA" ), 28 U.S.C. § 2254 (2012). Currently serving a forty-year " three strikes" sentence for first-degree burglary, California Penal Code § 459, the petitioner argues that she was deprived of effective assistance when her attorney failed to present evidence of mental illness at sentencing. Because the state's adjudication of this claim was not an unreasonable application of clearly established federal law, 28 U.S.C. § 2254 (d), we AFFIRM the district court's denial of the petition.

I.

Sophia Daire is a 48-year-old woman who has, by all accounts, led a rather difficult life. Her personal history is an unfortunate tapestry of poverty, addiction, mental illness, and incarceration. Interwoven among these dark elements is a disturbing pattern of violence, with Daire having suffered repeated physical and sexual abuse at the hands of friends, family members, and unknown assailants.

On September 8, 2006, Daire was charged with first-degree burglary in violation of § 459 of the California Penal Code. A neighborhood resident had reported various possessions missing from his home, including cash, perfume, clothing, and costume jewelry. Daire was seen wearing the resident's missing NFL jersey a few minutes later, but the more valuable stolen items were not in her possession and were never recovered. Upon her arrest, Daire denied having committed any crime, and insisted that she found the jersey and some of the other stolen property in a nearby garbage bin. She conceded, however, that she has a rather long history of similar residential burglaries.

When Daire's first trial resulted in a hung jury, she was retried and convicted. At sentencing, Daire admitted to three prior burglary convictions for the purposes of California's " three strikes" recidivism sentence enhancements, id. § 667(a)(1). Daire also filed a motion asking the court to disregard two of these strikes, as permitted

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by Romero[1] and § 1385 of the California Penal Code. Although defense counsel was aware of Daire's bipolar disorder, neither the motion nor the subsequent oral argument included any information about Daire's mental health. Ruling from the bench, the court denied the motion, finding a high risk of continued recidivism and concluding that Daire represents the kind of " case[] that [the]Three Strikes [Rule] is for." The judge then sentenced Daire to forty years, the minimum permissible sentence in light of her record. A successful motion could have resulted in a sentence of fewer than ten years. See Cal. Penal Code § 461.

After unsuccessfully raising various challenges on direct appeal,[2] Daire filed a habeas petition in state court. Daire argued, inter alia, that counsel had been constitutionally ineffective by conducting insufficient research into Daire's medical history and by failing to use Daire's bipolar disorder as a mitigating factor at sentencing. In particular, Daire asserted that additional research would have revealed that her condition " can be managed with proper medication and treatment, probably quite easily." Under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), representation is only constitutionally inadequate if counsel's conduct is unreasonable and results in prejudice to the defendant.

The California Superior Court declined to issue the writ, rejecting Daire's argument for two reasons. First, it found counsel's performance objectively reasonable in that counsel had " properly represented Daire throughout [the] matter," and had presented the sentencing judge with myriad mitigating factors at sentencing. See In re Sophia Daire, No. VA 096706, 3--4 (Super. Ct. L.A. Cnty. July 15, 2010) [hereinafter " State Decision" ]. In addition, the court concluded that the sentence was ultimately unaffected by the omission of any evidence regarding Daire's mental health, as that evidence would not have overcome " her unrelenting record of recidivism." Id. at 4--5. The decision was affirmed without comment by the intermediate court of appeals and by the California Supreme Court.[3]

Finding no relief from the state bench, Daire turned to the federal courts, renewing her ineffective assistance argument in a petition submitted to the Central District of California. Under the AEDPA, federal courts may afford habeas relief from state custody only where a state court's adjudication of the same habeas claim was " contrary to, or . . . an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). A magistrate judge found the AEDPA standard satisfied with respect to the first prong of the Strickland test. See Daire v. Lattimore, No. CV 10-3743-DMG(AJW), 2011 WL 7663701 (C.D. Cal. Nov. 10, 2011). Specifically, the judge found the state court's analysis of counsel's conduct " conclusory and unreasonable," and that trial counsel " fail[ed] to present the most persuasive evidence to support the Romero motion."

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Id. at *7 (footnote omitted). Nevertheless, the magistrate judge recommended denying the petition after finding that the state court's adjudication of the prejudice prong was " neither contrary to, nor an unreasonable application of, the Strickland standard." Id. at *8. As a consequence, the magistrate judge concluded, Daire was " not entitled to relief on the basis of this claim." Id.

After reviewing the magistrate judge's report, the district court accepted its recommendation only in part. See 2012 WL 1197645 (C.D. Cal. April 9, 2012). Although the district court agreed that the state court had unreasonably adjudicated effective assistance, the district court disagreed with the magistrate judge's conclusions regarding prejudice. Id. at *1. Specifically, the district court found that the state courts had " failed to even consider whether the presentation of mental health evidence could have made a difference to the sentencing court." Id. at *2. The district court explained:

Important to the prejudice assessment, and not even mentioned in the Superior Court's denial of habeas relief, is the fact that when declaring a mistrial after the first trial ended with a deadlocked jury, the trial court stated, " [t]he court could attempt to undercut the People's offer, certainly on Romero, and I think there's a strong basis for that." This statement suggests that the trial court, which had just heard the evidence presented during the first trial, was inclined to find a basis for granting a Romero motion. The Romero motion ultimately presented to the trial court, however, failed to include any evidence regarding petitioner's severe mental illness, the effect of that mental condition on her culpability, and the medical opinion that her illness was treatable.

This Court finds that the mental illness evidence omitted by counsel in the Romero motion . . . potentially explains her drug use and recidivism, and would have provided the 'strong basis' for the Romero ...

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